Needed update to campus sexual-harassment policy goes too far

Originally published December 2, 2018 at 12:01 pm

Survivors of sexual violence and their supporters gather to protest proposed changes to Title IX before a speech by Education Secretary Betsy DeVos in 2017 at George Mason University in Arlington, Virginia. (AP Photo / Jacquelyn Martin)

U.S. Education Department proposal on sexual harassment and assault on campus goes way beyond the needed adjustments.

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Obama-era federal guidelines for responding to sexual harassment and assault on college and K-12 campuses clearly needed an update, but the policy proposed this month by U.S. Education Secretary Betsy DeVos should not be adopted as drafted.

In crafting the new rules, DeVos says she and others in the Trump administration felt the due-process rights of the accused were all but ignored by current policies. Her proposal seeks to standardize disciplinary procedures, including legal representation and appeals.

But some of changes would create unintended consequences, delay outcomes and raise troubling questions, all of which prompted U.S. Sen. Patty Murray, D-Washington, last week to call for DeVos to rescind her proposal.

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Victim advocates say elements of the proposal would make students less likely to report harassment or assaults. They note the new rules go too far in changing the definition of what constitutes sexual harassment, as well as relieve colleges of the responsibility to investigate assaults occurring off-campus, at fraternity and sorority parties, in nearby college housing or online.

Mary Ellen Stone, executive director of the King County Sexual Assault Resource Center, says the proposed policy “assumes people have to get to the breaking point” before schools take action. The new rules state harassment must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. That would leave some students subjected to ongoing harassment that doesn’t meet the actionable threshold, Stone says.

And once a case does reach that point, victims may be reluctant to proceed because the new rules call for an open courtroom-like setting for hearing complaints. Although some changes would be positive — victims and the accused could hire a lawyer and decisions would be made by a neutral party — others could prove problematic. For example, the rules would allow cross examination of the accusers and the accused, potentially by high-powered attorneys or even a parent of a student accused of rape.

All these changes could add months to the proceedings and leave an assault victim to face her attacker in class or on campus. Victims may decide to stop going to class or drop out of school, and that’s exactly what the rules are supposed to avoid.

Also problematic is a section of the proposal that would make it more difficult to discipline students accused of either harassment or assault by using a criminal court evidentiary standard of “clear and convincing evidence” instead of the “preponderance of evidence,” a standard under the Obama administration.

Even at colleges where administrators have found a good approach to protecting both victims and the accused, the proposed new rules are rigid enough to prevent them from using their own conduct codes to handle sexual-harassment complaints, worries Fajer Saeed Ebrahim, a fellow at Legal Voice in Seattle.

The proposed new rules add more uncertainty to Title IX, Ebrahim maintains. For example, the new rules would limit who can start a disciplinary case against a student. Currently, many different adults, from playground monitors to college resident advisers, can start the process. DeVos should not make it harder to begin the proceedings. She should improve the process and make it more uniform.

If these rules are adopted, lawyers and school administrators would have the final say on how they are applied. The policy needed to be refined, clarified and updated, but this proposal goes too far. Secretary DeVos on Thursday began 60 days of public comments on her proposal. The public — especially students and parents who have experienced a campus disciplinary proceeding — should share their opinions. And DeVos should listen.